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United States v. Henderson

United States District Court, D. Nebraska

August 19, 2019



         This matter is before the Court on the Findings and Recommendation (F&R), ECF No. 55, issued by Magistrate Judge Susan M. Bazis. The Magistrate Judge recommended that the Motions to Suppress filed by the Defendants Kendall Miller, ECF No. 27, and Lawrence Henderson, ECF No. 34, be denied. Both Defendants filed Objections to the F&R, ECF Nos. 56, 58, as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government responded to the Objection, ECF No. 60. For the reasons set forth below, the F&R will be adopted, and the Motion to Suppress will be denied.


         Defendants are charged with possession with intent to distribute methamphetamine, cocaine, and marijuana. Indictment, ECF No. 1. Defendants seek to suppress any evidence obtained by law enforcement on August 28, 2018, asserting that Nebraska State Patrol Trooper Samuel Mortensen lacked probable cause to stop Defendants' vehicle, impermissibly interrogated Defendants, extended the traffic stop in order to conduct a dog sniff, and lacked probable cause to search Defendants' vehicle. Neither Defendant directly objected to the Magistrate Judge's factual findings. Having reviewed the record, the Court adopts those findings and provides the following by way of summary:

         On August 28, 2018, Trooper Mortensen was traveling west on I-80 in Hall County, Nebraska, when he observed a white semi pulling a white trailer traveling east. Trooper Mortensen observed two individuals in the semi which, in his experience, is uncommon. As the semi passed, Trooper Mortensen observed that trailer did not have a license plate, so he turned his cruiser around and initiated a traffic stop.

         As he approached the semi, Trooper Mortensen observed that the rear of the trailer displayed the company name, DOT number and MC number. Trooper Mortensen testified that these markings are uncommon because they are not required by the Federal Motor Carrier Regulations and would have been an added expense for the company to put that marking on the trailer. Trooper Mortensen also noticed a temporary tag where the license plate should have been and fresh or new paint around the rear of the trailer and around the axles. This led Trooper Mortensen to believe that the trailer was new or recently-sold.

         Henderson was seated in the passenger's seat and Miller was in the driver's seat. Trooper Mortensen advised Defendants of the reason for the stop and asked to see the registration documents for the semi as wells as Miller's driver's license. As he made these requests, Trooper Mortensen noticed several pine-tree-style air-fresheners throughout the cab of the semi. Defendants produced the registration, lease agreements, and insurance information. The documents revealed that the purchase date of the trailer was August 23, 2018.

         Trooper Mortensen informed Defendants he was going to perform a level two inspection-a type of walk-around inspection of a commercial vehicle. Trooper Mortensen testified that it is his general practice to do a level 2 or 3 inspection whenever he stops a commercial vehicle. After he completed the level 2 inspection, Trooper Mortensen told Defendants he was going to prepare an inspection report, and asked Miller to accompany him to his cruiser.

         As Miller exited the semi, Trooper Mortensen requested Miller's electronic log book. The log book showed several days of off-duty time prior to August 25, 2018, when the drive-time began. He noted that there was a significant amount of down time in the Salt Lake City, Utah, area. Trooper Mortensen also noticed that there was a short amount of on-duty driving time before there was off-duty time again, and then it showed driving from Salt Lake City to the North Platte area.

         After Trooper Mortensen examined Miller's log book, he asked Henderson about their trip. Henderson told him that they were coming from California. Henderson said they had dropped part of a load in Salt Lake City and that they were headed to drop the remainder of the load in Ohio. Henderson provided Trooper Mortensen with his driver's license and offered to show Trooper Mortensen what was in the trailer.

         After his conversation with Henderson, Trooper Mortensen returned to his cruiser with Miller. In the cruiser, Trooper Mortensen began to examine the paperwork and run background checks on Defendants. Trooper Mortensen learned that Miller had a valid commercial driver's license out of Ohio. He also learned that Miller had a criminal history for assault and that Henderson had a prior drug charge.

         While in the cruiser, Trooper Mortensen asked Miller for further details about their trip. Miller told Trooper Mortensen that they picked up the load in California, but he could not recall exactly where, and said they were taking the load to Columbus, Ohio. Miller told Trooper Mortensen that this was his first trip for the company. Trooper Mortensen asked Miller if they had taken a load to California, and Miller said they had not. Trooper Mortensen asked how they arrived in California, and Miller corrected himself and said that they had taken a load to California with a different truck. Trooper Mortensen thought this was significant because, in his experience, it is not common practice to change trucks. Trooper Mortensen further testified that during their discussion, he thought he could smell the odor of burnt marijuana on Miller. Trooper Mortenson stated that Miller remained calm and relaxed and answered all questions.

         After his discussion with Miller, Trooper Mortensen left the cruiser to return Henderson's license and again asked Henderson about their travel plans. Henderson told Trooper Mortensen that they had driven a different truck to California with a different load, and then had changed companies. Henderson explained that he did not have any prior driving time on his log book because the other company that he drove for had a different log book system.

         Trooper Mortensen then returned to the cruiser to complete the inspection report. He returned Miller's paperwork and told Miller he was free to go. At that point, according to Trooper Mortensen, the purpose of the traffic stop was complete. As Miller was exiting the cruiser, Trooper Mortensen asked Miller if there was anything illegal in the semi and if he was still willing to consent to him looking inside the trailer. Miller told Trooper Mortensen that he was just the driver and he had to ask Henderson for consent to search. Trooper Mortensen told Miller to wait in the cruiser while he went to speak to Henderson. Trooper Mortensen acknowledged that Miller was not free to leave at that point.

         Around this time, Trooper Matt Adams arrived on the scene. As Trooper Mortensen left the cruiser to speak to Henderson, he asked Trooper Adams to talk to Miller to see if he could smell marijuana. Trooper Mortensen then asked Henderson for consent to search the semi and trailer. Trooper Mortensen explained that he had several suspicions and, based on his experience, the circumstances of the trailer and their documents were consistent with a criminal enterprise.

         Henderson acknowledged that the trailer was just picked up and was new, but that he had gone coast to coast in the semi. Henderson explained he was going back to California to get the license plate and, since they had all their paperwork, he did not understand why this was a concern. Henderson indicated he wanted to head down the road. Henderson further stated that he did not think there was probable cause to search the semi. Trooper Mortensen admitted that he did not have probable cause and that was why he was asking for consent to search. At that point, Henderson gave Trooper Mortensen consent to search the trailer, but not the cab of the semi.

         Trooper Mortensen had Henderson exit the semi, requested a K-9 through dispatch, and then conducted a search of the trailer. The search of did not uncover any contraband. After the search, Trooper Mortensen informed Henderson that he was going to prepare a receipt for the search. He also told Henderson that a K-9 was going to come to double-check the trailer.

         Miller was still in the cruiser when Trooper Mortensen returned to prepare the receipt. As he was completing the receipt, Trooper Mortensen used the computer in his cruiser to see how long it would be before the K-9 arrived. Once the receipt was complete, Trooper Mortensen returned Miller's documents and provided him with a copy of the receipt to sign. As Trooper Mortensen was preparing to scan the signed receipt, he noticed that the log book he examined belonged to Henderson, not Miller. Trooper Mortensen requested Miller's log book. Miller stated that he did not have one and was operating under Henderson's book. Trooper Mortensen testified that this constituted a false log and was an ...

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